Runaway grand jury: The aftermath

Not content to sit down while the grand jury investigated the doings-on in her office, Harris County District Attorney Pat Lykos decided to arrange her own investigation. Of the grand jury.

According to the Houston Chronicle, Ms. Lykos ordered investigations into the grand jurors, two judges (Marc and Susan Brown) and Mike Anderson, her opponent in the GOP primary. According to Ms. Lykos, it was a "cursory internet search."

Locked in her shell up on the sixth floor of the Criminal (In)justice Center, Ms. Lykos has apparently lost touch with all semblance of reality as she just can't understand what the problem is.

Just how would it go over if it turned out a defense attorney was conducting an investigation into the backgrounds of the grand jurors? Would Ms. Lykos and her minions have such a relaxed attitude if that were the case? I think not.

"The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury's radical, erratic and what we believed to be unlawful action." -- Pat Lykos

Of course rule number one when you get caught in a bad situation is to minimize it. Rule number two is to shift the blame. The unspoken rule is to avoid any responsibility for your actions. And don't forget the corollary, when in doubt, throw someone else under the bus.

Lykos said she relied on assertions from Don McWilliams, her chief investigator, that there was no "investigation." 

However, according to three sources familiar with the situation, McWilliams was asked by the district attorney's first assistant, Jim Leitner, to "investigate" at least two grand jurors "for the boss." The sources did not want to be identified because they were not authorized to discuss the situation.

Poor Jim. He had the audacity to run against Ms. Lykos in the 2008 Republican primary and, after finishing third in a three horse race, swallowed his pride and went to work for Ms. Lykos. His reward for his loyalty to Ms. Paranoid are the tire marks on his back.

Now here's where it gets interesting. Jack Abercia, the former constable for Precinct One, got himself indicted because either he used, or allowed someone in his office to use, a website available only to law enforcement agencies to run background checks on people. Did Mr. McWilliams' "cursory internet investigation" involve the use of such a website or did he just google the names?

McWilliams went to his courthouse office and used two websites that collect personal information for use by law enforcement and others, according to the sources. He called Lykos with his results and left a voicemail. 

A week later, Leitner directed McWilliams to expand the investigation to state District Judge Susan Brown, her husband who also is a judge and Mike Anderson, a former judge who is running against Lykos in the Republican primary, according to the sources. 

On Thursday, Lykos said confidential law enforcement databases used by authorities to check criminal records were not used. It is illegal to use those websites for unauthorized investigations.

These revelations raise serious concerns about the ability of Pat Lykos to serve as Harris County District Attorney. While her actions may or may not have been legal, they certainly add to the stench emanating from  1201 Franklin. A grand jury is supposed (and I stress the word "supposed") to be an independent body determining whether or not there is probable cause to believe someone committed a criminal act. What message does it send to grand jurors when the sitting District Attorney is using her office to investigate members of a grand jury while it conducts an investigation?

And what was the purpose of the investigation - to intimidate or to blackmail? Ms. Lykos and her minions have some serious questions to answer. But don't hold your breath waiting to her them.

On crime and car repairs

A storm is a-brewing in Houston over the cost of auto repairs. City Council is expected to pass a new ordinance that would require repair shops to obtain a car owner's signature before they can do any work that would add $100 or more to the estimate given to the car owner.

Well, yeah, if you tell me it's going to cost X to fix my car, if you find something else wrong that's going to jack the price up, you should call me. If you see something you think needs to be replaced "while you're down there," call me. That's just good business and what most repair shops I've dealt with do.

Under the proposed ordinance, repair shops that don't get authorization before beginning work could be cited by police. The citation would be a Class C misdemeanor, much like the tickets handed out by building inspectors.

Here's the problem. The proposed ordinance would criminalize bad business behavior. Is that what we really need? Do we need to create new criminal offenses? And who would be the person cited? The owner? Manager? Service advisor?

I'm sure the proposal is well-intentioned - unless, of course, the real driving force behind it were the insurance companies hoping to stick it the body and repair shops where people take their cars for work covered by their car insurance. Hmm.

Criminal law should be used to deal with situations that are harmful to society - to discourage such behavior and to punish it when it does occur. But criminalizing the failure to get authorization to do a repair is like using a sledgehammer to drive in a nail.

I know that Class C violations are punishable by nothing more than a fine -- but there's the cost of hiring an attorney and attending court that must be taken into consideration. Then there's the odd notion that you could go to jail should you fail to appear on your court date.

We're dealing with a civil issue here. When you take your car to the shop you are entering into a contract with the shop that you agree to pay them in exchange for them attempting to fix your car. Contract law should govern any dispute between the car owner and the repair shop.

There are far too many criminal laws on our books today. This is one we don't need to create.

Nevada high court tosses blood test

It is common, particularly with the rise of "No Refusal Weekends," for blood draws to be conducted long after a motorist has been arrested for suspicion of driving while intoxicated. The results of those blood tests are waved in front of jurors by prosecutors telling those jurors they can convict based solely on a number.

Judges are more than willing to allow the results of these tests into evidence based on the pseudo-scientific exercise of retrograde extrapolation - more commonly knows as throwing a dart at a board.

But this past December, the Nevada Supreme Court threw a monkey wrench into the works when it held that the results of a blood draw taken over two hours after an arrest weren't relevant.

In The State of Nevada v. The Eighth Judicial District Court and the Honorable Stefany Ann Miley, 127 Nev.Adv.Op. 84 (Nev. 2011), Mr. Bobby Armstrong collided with another car, causing serious bodily injury to the other driver. Almost two-and-a-half hours later a blood draw was conducted. According to the test, Mr. Armstrong had an alcohol concentration of .18. Mr. Armstrong moved to suppress the results of the test on the grounds that the blood was drawn outside the state's two-hour window, only one sample was conducted and that retrograde extrapolation was unreliable, irrelevant and unfairly prejudicial.

The trial court ruled that the test results were inadmissible but allowed prosecutors to introduce other evidence of Mr. Armstrong's intoxication. The state's writ of mandamus (thus accounting for the bizarre style of the case) followed.

The Nevada Supreme Court held that retrograde extrapolation was reliable. But the Court also found that the the relevance of the evidence was far outweighed by its prejudicial effect. In coming to its conclusion, the Court looked to the Mata decision in Texas in which the Court of Criminal Appeals laid out a list of factors to be considered when determining the reliability of retrograde extrapolation. These factors included the length of time between the arrest and the test, the number of samples taken and whether the expert had knowledge of the defendant's individual characteristics when guessing calculating the defendant's alcohol concentration at the time of the stop.

In this case the Court was concerned that the blood sample was taken more than two hours after the stop and that the state's expert had very little knowledge of any of Mr. Armstrong's individual characteristics. In fact, the state's expert based much of his testimony on the characteristics of an "average" person, not Mr. Armstrong. But the Court's biggest concern was that only one blood sample was taken - giving just one point of reference.

The Court reasoned that if two blood samples had been taken some time apart, then the results of those tests would tell whether Mr. Armstrong was absorbing or eliminating at the time of the accident. With but one sample, Mr. Armstrong's alcohol concentration could have been higher, lower or the same at the time of the accident as it was at the time of the test.

On destroying America by digging up Marilyn Monroe

Today's there's yet more evidence that the U.S. War Against Something Terrorism has caused security personnel to misplace their common sense.

Leigh Van Bryan and his friend, Emily Bunting, flew into Los Angeles from Ireland for a holiday. A few days earlier, Mr. Van Bryan had tweeted:

"Free this week, for quick gossip/prep before I go and destroy America."

He had also tweeted that he was going to be in LA for three weeks annoying people and "diggin' Marilyn Monroe up."

Somehow Mr. Van Bryan's messages made their way into the hands of the Department of Homeland Security who weren't too amused. Whether it was his saying he was going to destroy America or dig up the body of Marilyn Monroe isn't clear. But, what was painfully clear over the course of five hours of interrogation was that someone didn't find his humor very funny.

After the interview, Homeland Security reported: "Mr Bryan confirmed that he had posted on his Tweeter website account that he was coming to the United States to dig up the grave of Marilyn Monroe. 

"Also on his tweeter account Mr Bryan posted he was coming to destroy America." 

The US Customs and Border Protection agency said in a statement that it tried to maintain a balance between "securing our borders while facilitating the high volume of legitimate trade and travel that crosses our borders every day". 

It added: "We strive to achieve that balance and show the world that the United States is a welcoming nation."

Okay, I get the anti-terrorism hysteria - after all that's apparently part of the government jobs program. So long as there's a threat of terrorism los federales need to keep plenty of security personnel on the payroll. And it's probably just as well because I think the last thing we need is a bunch of unemployed "scoper and gropers" wandering around the streets of this country.

But let's get real. First, does anyone really think that an Irish bartender was intending to blow up something in America? Second, why does Homeland Security give a flying fuck about Marilyn Monroe's bones? Is her coffin hiding evidence of her affairs with John and Bobby?

There's a lot of information out there on the internet and I'm certain that some of it can provide leads to some folks who are up to no good. But you've got to have context. You've got to use a little common sense. Mr. Van Bryan was coming stateside for a holiday, not to conduct a terrorist operation. The grocery clerks at Homeland Security were too caught up in their own self-importance to understand that.

I've said it before, and no doubt I'll say it again, the world is no more dangerous today than it was on September 10, 2001 - unless we're talking about the exercise of our right to be left alone by the government.

The latest shiny gadget

Oh, Apple certainly does have an image. They're the un-corporate corporation. They are more concerned with offering consumers the latest technology than they are with maximizing profits. Apple's just different.

Really?

Why not ask the workers who slave making shiny iPhones and iPads in China. Just ask the people who work around the clock until their legs swell. Just ask the young people who are routinely exposed to toxic chemicals. Ask the workers who survived the blast in Chengdu last May.

Coincidentally enough, Apple made a record profit of over $13 billion on some $46 billion in sales for the last quarter of 2011.

Apple typically asks suppliers to specify how much every part costs, how many workers are needed and the size of their salaries. Executives want to know every financial detail. Afterward, Apple calculates how much it will pay for a part. Most suppliers are allowed only the slimmest of profits. 

So suppliers often try to cut corners, replace expensive chemicals with less costly alternatives, or push their employees to work faster and longer, according to people at those companies. 

“The only way you make money working for Apple is figuring out how to do things more efficiently or cheaper,” said an executive at one company that helped bring the iPad to market. “And then they’ll come back the next year, and force a 10 percent price cut.”

While there is no doubt that Apple has left us with a myriad of innovations that make computing easier and more efficient, there is also no doubt that Apple is as concerned with maximizing profit as any other company out there.

For all its talk of being a different kind of company, Apple relies on suppliers around the world to produce the shiny gadgets we all crave. By contracting production to these suppliers, Apple is able to deny any responsibility for the working conditions. And, when the appalling nature of the work conditions comes to light, Apple is able to pin the blame on the supplier.

My first couple computers were Apples. I loved them. I can't imagine what computing would be like today without the innovative Macintosh operating system - God knows Microsoft wasn't making anything that would be remotely considered user-friendly.

But I've never been a member of the Apple cult. Apple's a company just like any other. Yes, your new iPhone or iPad is very shiny - but think about the grime behind the shine the next time you kneel down to worship at the shrine to Steven Jobs.

See also:

"Apple customers voice mixed reaction to reports of poor working conditions," PC World (Jan. 26, 2012)

"A good (and bad) week for Apple," On the Media (Jan. 27, 2012)

Graffiti, courthouse style

Handiwork of an unknown artist on the 2nd floor of the Harris County Criminal (In)justice Center.

Runaway grand jury closes up shop

Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.

The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.

Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.

What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?

Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.

Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.

I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.

As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.

So, go on, there's nothing to see here.